Bar Rafaeli Wins NIS 400,000 from Samsung’s Importers

Under the somewhat misleading title “Bar Refaeli wins copyright infringement case against Samsung importer” Israel’s business paper Globes reported that the Tel Aviv District Court has ruled in Bar Refaeli’s favor against Samsung importer Suny Electronics Ltd. over live on-line broadcasts of her for a 2006 ad campaign for Samsung, which were aired without her knowledge. Judge Avi Zamir ordered Suny to pay Bar Refaeli NIS 400,000 in compensation for breach of her rights in the filming of her without her knowledge, and NIS 150,000 in court costs. He dismissed Suny’s counterclaim for libel against Bar Refaeli for writing to Samsung Electronics Co. Ltd. in Korea. However, he also dismissed Refaeli’s personal claim against marketing consultant Avi Zeitan.

From the Jerusalem Post reporting here, it seems that there was an innocent infringement of the scope of what images of Refaeli could be aired, but that this wasn’t the result of bad faith. It appears that at the last minute the firm made a handwritten addition to the contract expanding what it could broadcast. It sent this addition to Refaeli’s representative. However, since Suny did not draw the representative’s attention to the change, it did not become part of the parties’ discussions and understandings. Thus Suny was found to have violated the agreement and Refaeli’s privacy, even if somewhat unintentionally. It is worth following the embedded links and reviewing the coverage by Globes and the Jerusalem Post. They are significantly different in terms of what the facts were and what the grounds for infringement were.

It seems that one issue was that the advertisement was played in cinemas and not just on television, and the second issue was that the day of filming was broadcast live without Ms Refaeli’s knowledge or authorization by it being uploaded to the Internet. I think this is a link to the clip about the making of the advertisement. It transpires that Ms Refaeli sued for NIS 4,000,000 for unauthorized over exposure and was counter-sued by Suny Electronics for the sum of NIS 2,015,000 damaging the campaign and for libel, since her representative complained to Samsung.

Bar was represented by her mother Tzippy. She was contractually obliged to take part in two days of filming, one of stills and one of video, for a cool $50,000 + VAT at the then current rate of exchange (2006). – At this stage I wonder if I am in the wrong profession, wrong body shape, wrong gender and wrong age. Ah well. Can’t be good at everything I suppose.

Tzippy claimed that each media was worth value and showed other contracts with other clients that explicitly discussed displaying adverts in different media.

The contract included the word “to include” and there was some discussion as to whether this word is an exclusive list of included media or an inclusive list leaving non included media excluded. There was, however, a contradicting clause stating “only the following media…”. It seems that Samsung amended the contract by handwritten addition of the word cinema, and Tzippy claimed not to have discussed or noticed this. This claim would seem totally ridiculous, except that the contracts were going back and forth via an intermediary and were apparently faxed, and the refaxing resulted in a decrease in resolution and thus Tzippy Refaeli’s claim not to have seen the handwritten amendment is feasible. Tzippy reported to her daughter that “… כנראה שלא שמתי לב אז לתוספת…”, – apparently, I didn’t notice the addition.

Judge Zamir understood this to mean that there was no גמירת דעת – no internalization of the amendment. He did. however, consider that there was no attempt of fraud or bad faith on the part of the producers. Since Tzippy would have translated this additional media into additional income, but missed the opportunity, compensation was due.

The campaign was shown in Cinema City and viewed an estimated 13,000,000 times by a captive audience. Rafaeli claimed that this over-exposure did her commercial harm. The big screen aspect was stressed. A media expert representing Rafaeli valued the cinema broadcasting at $50,000, whilst one representing Suny considered the value added at about 0.8% of the value of the campaign. The expert for the defendants considered that the cinema investment was about 0.8% of the total advertising campaign and the compensation should be similar. There was a lot of wrangling and cross-examination reported in the decision, but the bottom line is that Judge Hendler ruled NIS 100,000 in today’s money as appropriate compensation.

The live internet broadcast was not in the contract. It was apparently a last minute brainwave of a representative of the defendant and back in 2006, was novel. It certainly wasn’t included explicitly in the contract, but there was reference to Internet and PR and other elements that could be seen to allow this type of thing.

The defendants claimed that the additional photographers weren’t exactly concealed and Bar was aware what was going on. Bar claimed that she understood that they were making a film called “The making of the Samsung Commercial” for internal use, not for broadcasting. She certainly was not aware that it was being transmitted live on a popular media website (Tapuz) owned by the same businessman who had the Samsung franchise. Bar claims that she would have walked off the set had she known.

Ben-Dov, the importer and Tapuz owner claims that the live transmission was discussed with the plaintiff. He further calmed that the producer was running around reminding everyone at the top of his voice to behave themselves as the film was broadcast lived, and thus Bar knew about it and there was implied consent. Finally, he noted there was a hardly-inconspicuous portable transmission station parked outside that made it difficult to imagine that Bar could have been unaware.

There was a short segment of a conversation between Ben-Dov and Rafaeli that was captured on film, where the words “on U tube” were mentioned. The judge accorded this nugget far less importance than did the defendants.

Judge Zamir notes that Rafaeli seems surprised by the live transmission element. He considered that the Refaelis were suspicious of certain developments, but were not properly informed of what was going on. Bar did not remember hearing that the Internet was down, but had she, she probably would not have drawn the conclusion that the filming was being transmitted live on the Internet. In the pressure and noise of what was going on, Judge Zamir did not find it inconceivable that the Refaelis were unaware of the live transmission. On the other hand, Judge Zamir did not think that there was evidence that Ben-Dov tried to defraud them and considered it likely that there was a breakdown in communication and misunderstandings. He nevertheless felt that there was a value to the day of Internet live broadcast that he calculated as being worth NIS 300,000 in today’s money, and ordered the defendants to pay this additional sum. He added NIS 150,000 for legal fees.

In a quote that was picked up by the media, Zamir ruled:

The image of models, their voices, bodies, and names are their personal assets, and no one has the right to use them for commercial purposes without their consent and without compensation,” wrote Judge Zamir in his ruling. “These assets have the right to be protected. Every model, male or female, even if they chose to reveal themselves in an advertisement, even the broadest and most exposing, in any media, has the right not to have use made of these private assets beyond what was agreed, and without their explicit consent.”
Judge Zamir added, “Even deviations from existing agreements over the extent of the permitted use of these assets, damage them, damage that justifies financial compensation.”

He went on to rule that compensation could be due under the law of “Unjust Enrichment” and calculated at market value.

I reviewed this decision thinking it was copyright related, based on the Globes report. It isn’t. The case is about Unjust Enrichment. Models and their pimps are entitled to fix prices for various kinds of exposure and are entitled to compensation for same. The judgement is balanced and fair.

The sum awarded was about 10% of that claimed but reasonably represents what might have been negotiated by the two parties up front.

In a total digression, I have some sympathy with those who wish to ostracize Ms Refaeli for draft dodging to get on with her career, but suspect that they are jealous of her success or disapproving of her profession or both. I personally am against Israel having compulsory national service, at least for the period of time currently served, as I think it is unnecessary, uneconomical and creates social divisions and animosity. Whilst the law requires national service from everyone with specific exceptions, I believe that the there is some justification in criticizing the government for using Ms Refaeli as the image of image in tourism campaigns. I think there are also some valid arguments about the campaign being cheap and exploitative of women, but then again, not everyone comes to the Holy Land on pilgrimages, and the beaches and other users thereof are an attraction to some tourists.

Do you think that with over-exposure, Bar Rafaeli would resemble G. Yafit?

Here is a joke: Man walked into a Bar. Ouch she said. Sorry he said, and then having established what she was, they just haggled about the price.

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